R.F. Lodge, J.

1. This matter arises out of an order passed under S. 488,Criminal P.C. The present petitioner, Tarak Nath Dhar, married the oppositeparty, Sm. Sneharani Dhar, in the year 1939. Thereafter in the year 1942, the oppositeparty ceased to live with her husband and on 3rd September 1942, she presenteda petition praying for maintenance under S. 488, Criminal P.C., before theSub-Divisional Magistrate, Alipore. The application was opposed. Her assertionsthat she had been ill-treated by her husband and the other members of hisfamily were contested. After a full hearing the learned Magistrate accepted theopposite partys story of ill-treatment and held that she had sufficient reasonfor refusing to live with her husband and he passed an order directing herhusband to pay Rs. 20 per month as maintenance. An application to the SessionsJudge by the present petitioner was rejected. Thereafter the present petitionerfiled a suit for restitution of conjugal rights in the Court of second Munsiffat Howrah. The opposite party entered appearance and filed a written statementbut did not appear at the time of the hearing of the suit and the suit wasdecreed ex parte. Thereafter on 5th January 1946, the present petitioner appliedbefore an Honorary Magistrate (Mr. G.N. Mookherjee, the learned Magistrate whopassed the original order under S. 488, Criminal P.C.,) for an order that theorder of maintenance passed under S. 488, Criminal P.C., be cancelled in viewof the decision in the civil suit, On this application the learned Magistratepassed the following order:

The petition is rejected in view of the fact that the matterhas already been decided by the Court long ago.

2. An application in revision was rejected by the AdditionalSessions Judge, 24 Parganas. Hence this application.

3. The opposite party has been living with her father atNasik and other distant parts of India after obtaining the order under S. 488,Criminal P.C., but apparently she had knowledge of the suit for restitution ofconjugal rights and filed a written statement in that suit alleging that shehad been treated with cruelty and that she had sufficient reason for refusingto live with her husband. When the suit came on for hearing she did not appearand contest" and the suit was decreed ex parte.

4. In my opinion, the legal effect of this is the same as ifshe had adduced evidence in support of her defence and that evidence had beenrejected by the Court and her defence had been disbelieved. In other words, inmy opinion the decision in the suit for restitution of conjugal rights isequivalent to a decision by a competent Civil Court that the opposite party hadno sufficient reason for refusing to live with her husband. It is not suggestedthat other circumstances have arisen since that decree was made which wouldentitle a criminal Court to come to any other conclusion and it is notsuggested that the decree of the civil Court was obtained without the defendantin that suit having ample opportunity of contesting the suit if she wanted todo so. It is clear from the provision of S. 489(2), Criminal P.C., that it wasthe duty of the learned Honorary Magistrate to consider the effect of thisCivil Court decree and to apply his mind to the question whether in view of thedecree the order for maintenance should be cancelled or varied. The learnedMagistrate refused to do so and by such refusal obviously committed an error oflaw. The order of the learned Magistrate cannot be upheld and must be setaside. The only question is whether I should remand this application to beheard by the learned Magistrate to be disposed of according to law or whether Ishould pass an order in the matter without further remand.

5. As the material facts are not disputed, it seems to me undesirableto refer the matter back to the learned Magistrate. In the view I have taken ofthe admitted facts, it must be held that there is now a binding decision to theeffect that the respondent is refusing without sufficient reason to live withher husband. Such being the case, under S. 488, cl. 5, Criminal P.C. it was theduty of the Magistrate to cancel the order of maintenance. It seems to medesirable that I should therefore order the cancellation of the original order.

6. The Rule is accordingly made absolute, the order of thelearned Magistrate is set aside and an order is passed under cl. 5, S. 488,Criminal P.C., cancelling the original order of maintenance passed under S.488, Criminal P.C.

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Tarak Nath Dhar vs.Sneharani Dhar (29.11.1946 - CALHC)